7.  The applicant claimed that he was born in 1985 in Zalingei, a village near the town of Kutum in the region of North Darfur, Sudan. He currently lives in the Canton of Zurich.
8.   He also claimed to belong to the Fur ethnic group through his paternal line, and the Bergo ethnic group through his maternal line. He further alleged to have lived in Zalingei until 25 July 2004, when he had had to flee his village. He stated that shortly before he fled, his father had been killed and he had been mistreated by the Janjaweed, a militia that operates in Darfur and is in conflict with Darfur rebel groups, the Sudan Liberation Movement (hereinafter “the SLM”) and the Justice and Equality Movement (hereinafter “the JEM”). His village had been burnt down by them, many of its inhabitants had been killed, and had had their cattle stolen. On 25 July 2004 he travelled from his home region to Port Sudan, from where he left by boat on 1 August 2004. Twenty days later he arrived in Calais, France, from where he went by train to Paris and then Geneva.
9.   The applicant entered Switzerland on 23 August 2004 and applied for asylum the same day to the (former) Federal Office for Refugees (Bundesamt für Flüchtlinge – hereinafter “the FOR”). Since he was unable to produce any identity papers, on 13 September 2004 the FOR carried out a so-called “Lingua analysis”, during which his cultural knowledge and Arab dialect were assessed by an expert in order to ascertain whether he originated from North Darfur. The FOR also held a hearing as per Article 29 of the Asylum Act. By a decision of 25 October 2004 it dismissed the applicant’s asylum request, ruling that the Lingua analyst had demonstrated that the applicant definitely originated from Sudan but, owing to his Arab dialect, had concluded that he had most probably been socialised in Central or East Sudan, not in Darfur. The FOR further held that the applicant’s statements regarding the region he allegedly originated from, the itinerary he had taken while fleeing, and the whereabouts of his relatives had been contradictory, incomplete or partly wrong. He had shown difficulties in pinpointing neighbouring towns and refugee camps near to the village where he had grown up, as well as in describing street conditions and the climatic particularities of that region. His knowledge of the Janjaweed had also been incomplete. Those inconsistencies led the FOR to conclude that the applicant’s declarations regarding his origins in North Darfur and the expulsion from his village at the hands of the Janjaweed were implausible. He could therefore safely be returned to Sudan without being put at risk of treatment contrary to Article 3 of the Convention.
10.  The applicant appealed against this decision to the (former) Swiss Appeal Board for Asylum (Schweizerische Asylrekurskommission – hereinafter “the Appeal Board”). Specifically asked in those proceedings for personal documents, he stated that he had never possessed identity papers, and that all his other personal documents had been burnt during the Janjaweed’s assault on his house. He had only known his date of birth because his parents had told him. On 15 February 2005 the Appeal Board endorsed the FOR’s decision. In this decision it was also established that the FOR had breached the applicant’s right to be heard because it had not given him an opportunity to contest the results of the Lingua analysis. The applicant had however been able to submit comments on the Lingua Analysis to the Appeal Board. The FOR’s procedural failure had therefore been remedied.
11.  After January 2008 the domestic authorities assumed that the applicant had left Switzerland unchecked. On 2 January 2009 he was however arrested and imprisoned in St Gallen for illegal residence in Switzerland.
12.  On 7 January and 2 February 2009 respectively, the applicant lodged a second asylum request with the Federal Office for Migration (hereinafter “the FOM”), indicating that he had in the meantime become a political activist in Switzerland in such a way that he would face a real risk of persecution if expelled to Sudan. He explained that he had become an active member of the Sudan Liberation Movement-Unity (hereinafter “the SLM‑Unity”) in Switzerland, had been appointed its human rights officer, and had participated in several of its public activities since 2006. In addition, he also had become a member of the newly-founded Darfur Peace and Development Centre (hereinafter “the DFEZ”) in Switzerland. He stated that because of an interview broadcast on a local TV channel in Eastern Switzerland, as well as several press releases in which his name had appeared, the Sudanese authorities had certainly identified him as an SLM‑Unity member. It followed that if expelled, he would in all probability be arrested at the airport in Sudan and be exposed to a risk of treatment contrary to Article 3 of the Convention, not least because he originated from Darfur, had applied for asylum abroad and had spent many years outside his home country. With regard to his origins, he submitted an official extract from the birth register in Sudan issued on 26 July 1987 stating that he was born in Kutum, North Darfur, and a petition signed by twenty Darfuris living in Switzerland who confirmed that he originated from that region.
13.  On 15 May 2009 the FOM dismissed the applicant’s second asylum request; however, that decision was quashed on appeal by the Federal Administrative Court (hereinafter “the FAC”) on 28 May 2009. It ruled that, in accordance with domestic law, the FOM was under an obligation to consider the applicant’s allegation regarding his political activities and possible grounds for asylum on the merits, and to conduct an oral hearing with him.
14.  In the ensuing proceedings, the FOM formally granted the applicant the right to be heard regarding his political activities and possible grounds for asylum. The applicant thereby submitted his member pass for the SLM‑Unity Switzerland, a membership confirmation letter from the president of that organisation, several pictures of himself at its demonstrations and meetings, and his entry passes to sessions of the United Nations Human Rights Council in 2009 and 2010.
15.  By a decision of 8 June 2012 the FOM rejected the applicant’s asylum request. It ruled that he had only joined the SLM-Unity after he had left his home country and after his first asylum request had been dismissed in 2005. He had not proven that he had in-depth knowledge of the structure and agenda of the SLM-Unity, nor had he been able to precisely describe his responsibilities as human rights officer of that organisation. According to the FOM, it was therefore evident that his political activities only served to create subjective post-flight grounds (subjektive Nachfluchtgründe). Furthermore, his statements regarding the interview given to the local TV channel had been very vague, and it was not established that the interview had been broadcast at national or international level. While the FOM did not dispute that the Sudanese government was monitoring political activities of opposition leaders abroad, it held that the authorities were only focusing on people with a high political profile. They did not have the resources to monitor people like the applicant, whose activities were carried out at low level. It was therefore unlikely that his political involvement had attracted their attention. In addition, the FOM ruled that the applicant, who had failed to submit identity papers and had made contradictory statements regarding his ethnicity, could a fortiori be returned to Sudan because the Lingua analysis had shown that he did not originate from Darfur, but from Central or East Sudan. Even assuming that he did originate from Darfur, this would not prevent him from relocating to another part of Sudan, for example Khartoum. It was also established that he had family ties in Sudan, and that his professional experience would facilitate his return.
16.  The applicant appealed against this decision to the FAC. Regarding his origins in Darfur, he claimed that the FOM had ignored his birth certificate and had insisted on using the results of the Lingua analysis without explaining the discrepancies between the two documents. With respect to the assessment of his Arab accent in the Lingua analysis, he stated that he had learnt its correct pronunciation at the madrasa (Koran school) and not from his parents. Furthermore, if he did not originate from Darfur and had not personally experienced the people’s suffering there or lost almost all his relatives in the conflict, he would never have become so actively involved in the political cause of that region. Regarding his political activities, the applicant further stated that he had been the human rights officer of the SLM-Unity in Switzerland since 2009 and as such had participated in many political activities and international meetings. On one occasion, he had even met the current Sudanese president’s brother in the United Nations building in Geneva, and had had an argument with him. He claimed to have appeared in the national and international news, on CNN, and to have featured with his picture in the St Galler Tagblatt, a Swiss newspaper. Therefore, he had certainly attracted the attention of the Sudanese authorities. Owing to his political involvement and to the general situation in Darfur, he alleged that he would be subjected to treatment contrary to Article 3 of the Convention if expelled there.
17.  On 6 August 2012 the FAC dismissed the applicant’s appeal. It held that the applicant’s statements regarding the itinerary he had taken while fleeing already lacked credibility. Owing to rigid border controls, it was according to them almost impossible to get to Calais without any travel documents, even if they were only forged. The applicant should therefore have been able to submit some form of travel document. The FAC further considered that the birth certificate submitted had no value as evidence. It ruled that it could have been forged, since in Sudan such certificates were obtainable in exchange for bribes. However, even assuming that it was authentic, it was only evidence that the applicant had been born in Darfur, but not where he had grown up and been socialised. By contrast, the Lingua analysis of 21 September 2004 gave clear answers to those questions and had shown that the applicant originated from Central Sudan. Regarding the applicant’s political involvement, the FAC endorsed the FOM’s findings that his profile was not so high that it would have attracted the Sudanese government’s attention or created a risk of persecution if returned to Sudan. The applicant’s expulsion would therefore not be in breach of Article 3 of the Convention.
18.  On 27 August 2012 the applicant’s representative asked the FOM for access to the transcript of the Lingua analysis. By letter of 3 September 2012 it informed the representative that the applicant could listen to the interview conducted by the expert at its offices, but that the transcript contained some confidential information so could not be provided in full. The following details could be disclosed. The expert who had carried out the analysis originated from Central Sudan, where he had lived for thirty years; he had a university degree in linguistics, and had worked for the FOM since August 2003. He had interviewed the applicant on the following subjects regarding Sudan: (i) government and administration; (ii) agriculture; (iii) geography and (public) transport; (iv) traditions and customs; and (v) daily life. The applicant had answered all the questions correctly. His knowledge of his mother tongue Bargu had also been tested, but he had been unable to count from one to ten in Bargu and his Arab dialect had resembled more that of someone from Central or East Sudan. The applicant had also lacked knowledge of a plant commonly grown in Darfur. The expert had therefore concluded that the applicant certainly originated from (Central) Sudan, but not from Darfur.